Are you one of those Virginia employers who has not updated your EEO policies to include prohibitions against discrimination on the basis of gender identity and sexual orientation? If you are, then the time may have come to make those changes. Virginia Attorney General Mark Herring recently issued an advisory opinion regarding the Virginia Human Rights Act ("VHRA").

In the opinion, he concluded that the VHRA bans discrimination on the basis of "sex" and also prohibits discrimination on the basis of "gender identity" and, possibly, "sexual orientation."

The advisory opinion partly relies on last month's decision by the U.S. Court of Appeals for the 4th Circuit in the case of G.G. v. Gloucester County School Board. There, the Court ruled that a school board regulation limiting the use of student restrooms and locker facilities to a student's "biological or birth gender" violated Title IX, which has been interpreted by the federal government to require schools to treat transgender students consistent with their "gender identity."

The VHRA and the Issue of the Definition of "Sex"While the VHRA forbids discrimination on the basis of "sex," it does not actually define "sex." However, there are indications that the Virginia legislature intended it to prohibit discriminatroy behavior to the same extent as federal anti-discrimination laws, such as Title IX and Title VII of the Civil Rights Act. Therefore, Attorney General Herring looked to federal authority to answer the question of what the term "sex" means under the VHRA.

What Does Federal Authority Say About Gender Identity and the Definition of "Sex"?Neither the U.S. Supreme Court nor the 4th Circuit have squarely decided whether federal law bars discrimination based on gender identity. Still, Attorney General Herring found that there have been federal cases related to the issue, including Price Waterhouse v. Hopkins, a case in which the Supreme Court concluded that federal law prohibited discrimination that relied on impermissible sex-stereotyping based on gender identity.

Subsequent to Price Waterhouse, a number of federal courts nationwide have allowed sex discrimination claims brought by transgender plaintiffs to move forward on the theory of sex stereotyping. The Equal Employment Opportunity Commission ("EEOC") has gone even further, deciding in 2012 that "intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination 'based on sex,' and such discrimination therefore violates Title VII."With the combined weight of these federal authorities, Attorney General Herring concluded that under Virginia law, "sex" encompasses "gender identity." It is not clear whether the prohibition on discrimination on the basis of gender identity and, perhaps, sexual orientation, will extend to state anti-discrimination statutes other than the VHRA.

What About Discrimination Based on Sexual Orientation?It remains an open question whether discrimination based on sexual orientation is prohibited by Virginia law. Attorney General Herring found it significant that an increasing number of federal courts across the country have begun to apply the sex-stereotyping theory from Price Waterhouse to find discriminatory treatment in cases involving gays and lesbians - decisions that are in accord with the position taken by the EEOC.

Ultimately, Attorney General Herring concluded that Virginia law would remain unchanged the issue of sexual orientation, because no federal court has yet to adopt the view that "sex" equates to "sexual orientation." However, he made clear his belief that a Virginia court faced with the issue of sexual orientation discrimination "would likely find that discriminatory conduct against gay and lesbian Virginians based on sex-stereotyping or treating them less favorably on account of their sex violates the Commonwealth's anti-discrimination statutes."​Final ThoughtsWhile the scope of Virginia's anti-discrimination law has yet to be determined with finality, momentum clearly seems to favor expanding the prohibition against discrimination on the basis of "sex" to also include a ban on discrimination because of "gender identify" and "sexual orientation." Therefore, with the issuance of Attorney General Herring's advisory opinion, it may be prudent for Virginia employers to expand their EEO policies to prohibit job discrimination on the basis of gender identity and sexual orientation, despite some continuing uncertainty. ​